Smell of marijuana doesn’t justify stops, rules Md. appeals court

Simply smelling marijuana doesn’t justify a police officer stopping and investigating someone, according to a new Maryland appeals court ruling.

In a ruling released last week, Maryland’s Court of Special Appeals said police need “reasonable suspicion” that a crime is being committed to stop and question someone, and that just smelling weed doesn’t meet that standard.

Historically, the smell of marijuana provided police with the opportunity to detain, search and question a person, sometimes uncovering contraband or more serious crimes.

While possession of marijuana remains illegal in Maryland, in 2004 the state decriminalized having less than 10 grams of marijuana.

That distinction changes the way police can use the smell of marijuana in investigative stops, wrote Judge Kathryn Grill Graeff, in her opinion.

“Because possession of less than 10 grams of marijuana is no longer a crime, the suspicion required to support a stop for the crime of possession of marijuana, therefore, is that the person is in possession of more than 10 grams of marijuana. And because the ‘odor of marijuana alone does not indicate the quantity, if any, of marijuana in someone’s possession,’ [citing a previous case], it cannot, by itself, provide reasonable suspicion that the person is in possession of a criminal amount of marijuana or otherwise involved in criminal activity,” wrote Graeff.

The ruling overturns a Prince George’s County case, in which a boy was patted down — and a handgun recovered from his waistband — solely based on the officer’s declaration of smelling marijuana.

This investigative stop — known as a Terry stop — involved an officer walking up and stopping a group of people. The Terry stop is different than a traffic stop, according to Michele Hall, the assistant public defender who argued at trial and in the appeals court.

“The case does not comment on the smell of marijuana and traffic stops,” said Hall. “That is a different body of case law.”

A 2019 appeals court ruling determined police could not arrest someone based on the smell of marijuana, even though they saw a joint in a car, because they failed to demonstrate reasonable suspicion that the person had a criminal amount.

A spokeswoman for Maryland Attorney General Brian Frosh declined to comment, or say whether the state would appeal the ruling.

EDITOR’S NOTE: Clarifies the ruling applies to stops in which an officer approaches a group of people, but not traffic stops. 

Neal Augenstein

Neal Augenstein has been a reporter at WTOP since 1997. Through the years, Neal has covered many of the crimes and trials that have gripped the region. Neal's been pleased to receive awards over the years for hard news, feature reporting, use of sound and sports.

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